Limitation period in advance payments for the purchase of housing

entrega a cuenta compra vivienda

In Supreme Court it states that the limitation period for the insurance claim amounts paid on account for the purchase of a home is the general of Art. 1964 CC.

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The Supreme Court, Civil Division, of 5 June 2019 has clarified that the limitation period for actions against insurers by Advance amounts paid for the purchase of a property, It is the general art. 1964 CC.

Two buyers acquired the property by private agreement with a promoter. They were giving advance before delivery of the property. Later, the local council building occupation license granted,  although conditional on the property were holiday usage. the purchase agreement was extinguished by judicial authorization. Buyers complained to the insurance company of the developer reimbursement of the amounts paid on account. The insurer objected and argued the requirement of action within the course of two years based on art. 23 LCS. Buyers understand that the general term of art was applicable. 1964 CC at that time was fifteen years.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

The 4 January 2002 the City of La Línea de la Concepción granted the commercial Alleerton Holding SL building permit to build tourist apartments.

The 29 July 2002 a private contract of sale of one of the apartments was held. The selling party was said promoter and buyers D. Jose Ignacio and Mrs. Marie Antoinette.

The purchase price was set at the amount of 173.692 euros plus VAT.

The house should be completed on 31 August 2004. Should not be finished housing on the date outlined, the contract stated that "the buyer shall grant a grace period of this seller 90 days, after that period, the seller will be obliged to pay the buyer, From the day 91, an amount equivalent to the monthly mortgage payment burden involved ... After a reasonable period of time 180 days, the buyer will be entitled to the guarantee provided by the seller, If you decide to terminate the contract ".

The third stipulation of the contract was referred to "Amounts Guarantee Account". Stated that "the amounts paid on account of the price, You will be guaranteed by insurance policy the company ACC Surety Insurance or the like ... ... These guarantees will be extinguished upon delivery of the property ... ".

Buyers delivered to the selling price on account of a total of 92.925,13 euros.

The 3 October 2002 the selling entity signed with ACC, Damage Insurance and Reinsurance SA (then Zurich Insurance PLC, and thereafter Zurich) nº004 policy. This served to ensure the legal obligation to return the advance payments on account of the purchase price of housing.

The 4 November 2002 It is strengthening individual policy that guaranteed the return of their advances to the amount of issued 103.746,20 euros. According to the particular conditions of this policy the date of delivery of housing was the 31/12/2004. At that time they could claim the guaranteed amounts unless extended.

Under Art. 16 of the general conditions of the group policy and 9 of individual, “actions arising from the policy lapse after two years that could be exercised ".

The 21 September 2004 first occupation license is requested.

The 15 December 2004 City Council issued a decision and granted the license. But it is specified that "as long as the land use and the whole building ... is tourism, expressly forbidden residential use of apartments, failing to revoke this license ... ".

The 16 February 2006 the Court of Instruction No. 5 in Marbella agreed to meet the request for judicial authorization to resolve private purchase contracts. It was postponed the return of funds to the provision of sufficient cash for promoters.

One of the private contracts covered by the judicial authorization was the buyers D. Jose Ignacio and Mrs. Marie Antoinette. Therefore, the contract was terminated.

The 14 August 2012, D. Jose Ignacio and Mrs. Maria Antonieta made claim against the insurer.

The 21 December 2012, buyers sued the insurer. They requested payment 92.925,13 Main euros for advance payments made price.

The insurance company opposed the demand. He alleged that the action was prescribed by the applicable limitation period two years of art. 23 LCS. It was an action based on contract surety. The first court complaint occurred more than four years after the conclusion of the term. He added that, the insurer should not respond to the anticipated amounts. This is because, the object of the sale was not a housing for residence, but a holiday apartment, not covered by the Act 57/1968. Also, the policy was canceled. According to art.4 of Law 57/1968, the certificate of occupancy issued guarantees granted by the insurer canceled.

Primera Instancia

The 19 November 2014 the Court of First Instance No. 4 of La Línea de la Concepción gave judgment.

He upheld the lawsuit filed against the company. He condemned Zurich to pay the players the amount of 92.925,13 euros.

The judge considered that the action was not prescribed. Not apply within two years of the art. 23 LCS, but the general fifteen years of art. 1964 CC. The claim founded advances in the Act 57/1968 it did not establish a special and distinct within the general. The sale was subject to the Act 57/1968 even if the contract was referring to the construction of "tourist apartments with hotel use". Many other stipulations in the contract containing the term "dwelling". Also, the contract of sale and surety insurance alluded to this law. Therefore, demand could not go against their own actions and deny the application of a rule which was referred to in the policy.

Finally, housing had not been delivered on time by not granted the certificate of ENABLE. This concurrency determined Art. 3 Act 57/1968 and the policy itself. legitimated buyers to claim the insurance reimbursement of advances.

Provincial Court

The insurer appealed against the judgment at first instance.

The 30 June 2015, 7th Section, of the Provincial Court of Cadiz gave judgment. He upheld the appeal. I consider that, appointment to STS 15 July 2005, surety insurance in the limitation period is two years of art. 23 LCS.

According to that judgment, this period should be counted from that action could be exercised. What, expressly also had art. 9 insurance contract. Therefore, within two years he had expired when the first complaint was made against the insurance.

Supreme Court

Against the judgment of the second instance the plaintiff-respondent appealed. The only plea was the violation of Articles. 23 LCS y 1964 CC in relation to the jurisprudential doctrine of STS 17 January 2003, 7 November 2003 and 16 January 2015.

The applicant reiterated its pronouncements on demand. It claimed that the criterion of the judgment supposed to give more favorable treatment to the buyer who received a bank guarantee of advances. Return action exercised by the insured not fell within the scope of the art. 23 LCS.

The respondent opposed the application.

The 5 June 2019 the Civil Chamber of the Supreme Court handed down its judgment No 320/2019

Over the period of limitation of actions founded on the Law 57/1968.

La STS 3/2003, of 17 January, It considered applicable within the art generates. 1964 CC and not the art. 23 LCS. And this that the insured was a mere beneficiary of insurance concerted between the seller and the insured, and therefore, "Exempt obligations".

The Supreme Court ruling of 27 September 2018 He noted that the mention of the limitation period Art. 23 LCS was not part of its decisional reason. Such mention does not mean that the limitation period of the action against the insurance, founded in Law 57/1968, was in any case the provisions of art. 23 LCS.

At the same time, la STS 781/2014, of 16 January 2015, full, I consider that "the limitation period of the action against the depositary bank advancesIt was the general insurance Art. 1964 CC and not a year of art. 1968.2º”.

On the decision of the Board.

He considered the Chamber the limitation period against the insurer under the regime of Law 57/1968, was the general art. 1964 CC.

He determined that the art.1-1ª Chamber of Law 57/1986, envisaged as alternative guarantees repayment of the advance payments the insurance contract and the joint and several guarantee. And, would make no sense that the limitation period of the action of the purchasers was different and shorter in the case of insurance in the guarantee. As, Both forms of security should be imperatively contracted by the seller for the exclusive benefit of buyers. So, Article. 7 Act 57/1968 It provided that the rights of these were waived.

Therefore, the Chamber granted the appeal filed by the plaintiffs D. Jose Ignacio and Mrs. Marie Antoinette. He married the judgment under appeal, leaving without effect.


Action against the insurance buyers to refund the amounts of the guarantee, is not subject to the limitation period two years of art. 23 LCS, but the general art. 1964 CC.

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